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The Vibrant Life of Indigenous Relics

NAIDOC WEEK 2021

Kellehers Australia always yearns for the significance of Aboriginal cultural heritage to go beyond archaeological relics and include Indigenous stories, songs and dances.  The heritage of a living culture deeply rooted in oral traditions from antiquity, lives alongside a vibrant contemporary lifestyle of mobile phones and Facebook pages.  Whilst this living culture in no way disparages the wonderful work of archaeologists, and the archaeological focus might be called ‘stones and bones’, where buried relics, artefacts and objects can imply a dead culture. 

Victoria’s 2016 amendments to the Aboriginal Heritage Act 2006 recognised what is called intangible heritage. They introduced a system for recording intangible heritage, including songs and stories, on the Aboriginal Cultural Heritage Register, and made it “an offence to use registered intangible heritage for commercial purposes without consent of the relevant registered owner.”[1]

Caselaw concerning the important intangible heritage provisions may be evolving.  Aunty Joy Murphy tells stories of her rich ‘intangible’ heritage in her award-winning books[2].  Watch this space into the future, as Australia moves strongly toward recognition of its wondrous living Aboriginal heritage, its stories and songs[3]. Listening to Indigenous stories ensures that all Australians are clearer in the shared task of Healing Country.

The cases considered in today’s NewsFlash both concern ‘stones and bones’. However, through them, Indigenous Australians give voice to the stories behind barely visible ancient earth mounds and travelling paths recognised via archaeological work.

Image 1: Riddells Road Earth Ring[4]

The Sunbury Rings are ancient earthwork formations at Sunbury, a satellite town of Naarm (Melbourne), approx. 40km from its CBD. 

Image 2: Aerial Map of three Sunbury Rings[5]

The Sunbury Rings are located on elevated land within a curve of Jackson’s Creek. Man-made, they date back at least 1,000 years.  Most Melbournians would not know that we have our own Stonehenge in the city fringe.

Also called the Wurundjeri Earth Rings, these Rings are said to have been created by the “continual scraping back of earth and grass from the circles centre.”[6] The ring formations include ‘large stoned and heaped soil’[7], with each ring generally around 10 meters in diameter.

There are five rings, with the first recorded in the late 1970s and the last in the 1990s.

The exact purpose or use of these Rings is, at present, not publicly known. Wurundjeri Elder, Dave Wandin says:

We believe that they were used for marriage ceremonies where men and women would get prepared separately.[8]

The Wurundjeri are revegetating the land occupied by the Rings to restore native grasses and plants. 

 

                  Image 3: Google Map of Sunbury[9]

Images: Revegetating of land by the Wurundjeri Tribe Council[10]

In 2015, VCAT considered the Rings.[11] The land on which they exist was within an area proposed for residential development by Canterbury Hills Pty Ltd.  The Hume Planning Scheme[12] required the development plan to ‘show, where appropriate … sites of … heritage significance’. VCAT confirmed that ‘heritage significance’ includes sites of Aboriginal cultural heritage significance.

A report by Canterbury Hills’ cultural consultant identified areas of cultural significance, including one of the Rings[13] and four sites Aboriginal archaeological sites recorded under the Archaeological and Aboriginal Relics Preservation Act 1972 (Archeology Act).” [14]

The Wurundjeri Tribe Land & Compensation Cultural Heritage Council Inc (Wurundjeri) spoke for the Rings:

“[Sunbury Ring 4 is] one of the most important Indigenous cultural landscapes in [Victoria]”[15]

The complex of five ceremonial earthen rings (of which Sunbury Ring 4 is part) remains an important spiritual place for contemporary Wurundjeri people.”[16]

Hume City Council argued that Canterbury Hills’ final development plan should not be approved until approval of the Cultural Heritage Management Plan (CHMP). Canterbury Hills claimed that[17] the estate had been surveyed for cultural heritage in 1984, 1999, 2001 and 2004 and that it was is unlikely that additional cultural heritage would be found. It told VCAT that the estate had been planned in consultation with the Wurundjeri and arrangements existed with them to monitor construction of each stage for the discovery of any additional cultural heritage. The Framework Plan, it said, incorporated the Sunbury Ring 4 into the estate in a manner that met Wurundjeri requirements.

VCAT accepted the developer’s argument.  It considered that Sunbury Ring 4 was the most significant known site on the estate but was not in the first seven stages of the development, or in a stage that would closely follow the seven stages. For this reason, it considered there was sufficient time to finalise the CHMP before a permit was granted for any stage affecting Sunbury Ring 4.

The Wurund’jeri were involved in an earlier 2005 case, that concerned adjoining Country of the Bunurong People, but for whom they were appointed as the relevant People under the Archaeology Act.

Mt Shamrock is atop a ridge between the Toomuc and Deep Creek valleys just north of Pakenham, a town ~40km east of Melbourne’s CBD.  It lies in Bunurong Country.

Mr Steve Compton, on behalf of the Bunurong People, spoke for his Country before a Ministerial Panel considering a proposed quarry extension.

Whitefella law had created complexity. The neighbouring Wurundjeri People were listed as the local Aboriginal community for the area under the Archaeology Act and it was they whose ‘Consent to Disturb’ would be required – not the Bunurong. 

The Bunurong were not recognized.  The Panel noted that legislative boundaries under the Archaeology Act were not necessarily accurate and were at that time under review. 

Mr Compton explained the situation, a situation very common among Aboriginal Peoples throughout Australia in their inter-relationships concerning Country.

There was likely to have been an arrangement for shared use of the Toomuc Valley area.  … (T)he Toomuc Valley has long been recognized as a track used by Indigenous peoples as it provides a connection between the Dandenong Ranges and the sea.’

    

  Image: Toomuc Creek[18]

The Wurundjeri had made no submission before the Panel. However, the Panel wrote to the Wurundjeri and, in due course, the Wurundjeri’s acting CEO addressed the Panel, confirming the Bunurong’s long connection with the subject site.  

The quarry proponent engaged a consultant who produced the usual archaeological survey.  Subsequently, a 1989 survey came to light, with Ms L Smith reporting that ‘all creeks within the area, including Toomuc Creek, were potential locations for archaeological sites. Ms Smith developed a site prediction more for archaeological sites.  The proponent’s consultant concluded that ‘Aboriginal people carried out a range of activities in the area, including travel between coastal region and Dandenong Ranges, as a lookout location and for the quarrying of stone for tools and preparation of food. She suggested that environmental factors such as access to spring water, plant food and stone resources could have influenced Indigenous movements in this region.

Mr Compton outlined that the subject site is a most desirable location for a lookout, with both Port Phillip and Westernport bays being visible.  The Toomuc Creek is the last reasonably un-developed watercourse of significance in the area and it was an area of retreat during extreme cold and periods of drought. Springs would have been flowing for millions of years.  He told the Panel that the Bunurong are keen to pursue ways in which their Indigenous heritage in the Toomuc Valley can be preserved and interested. 

The Panel noted that neither Mr Compton nor the Wurundjeri was able to advise it on ceremonial places. The Panel appeared to be searching for some particularly sacred or spiritually significant element. 

By contrast, Mr Compton told the Panel that:

‘he was arguing for the ‘integrity of the valley’ rather than the ‘integrity of individual sites’.

Kellehers has recently been involved in several cases concerning the Birrarung (Yarra River).          

Again, the search for Indigenous cultural heritage and the contents of a typical acceptable  CHMP invariably focus on archaeological and artefact/object location, along with Indigenous ‘clearance’ for works and development.  The stories of the river and the Wurund’jeri and Bunurong, are routinely omitted.  How do we redress this enormous silence?

      Image: Aboriginal Elder of the Wurund’jeri people Aunty Joy Murphy[19]

Elder, Dr Joy Murphy’s voice rings clear:

“We are the gatherers, and language is an important part of culture still to be gathered.”[20]

KELLEHERS AUSTRALIA

6 July 2021

Download a PDF of this Article HERE.


[1] ‘Victorian Aboriginal Heritage Council’, Aboriginal Cultural Heritage Register – intangible heritage  (Web page) <https://www.aboriginalheritagecouncil.vic.gov.au/taking-care-culture-discussion-paper/aboriginal-cultural-heritage-register-intangible-heritage>.

[2] Murphy, Aunty Joy and Lisa Kennedy, 2016, Welcome to Country, Black Dog Books, Newtown, NSW – shortlisted for NSW Premier’s Literary Awards and NSW Premier’s History Awards 2017 and winner, Environment Award for Children’s Literature, The Wilderness Society.  Murphy, Aunty Joy and Andrew Kelly, Wilam: A Birrurung Story, 2019, Black Dog Books, Newtown, NSW – shortlisted 2020 Childrens’ Book of the Year Award.

[3] Kellehers Australia actively supports the Melbourne Writers’ Festival program for Indigenous writers.

[4] By Gary Vines – Own work, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=17404643.

[5] ‘Classification Report June 2015: Sunbury Rings Cultural Landscape’, National Trust of Australia (Vic) (Web) <chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.trustadvocate.org.au/wp-content/uploads/2018/01/SRCL-Classification-Report-June-2015.pdf>.

[6] ‘Wurundjeri Council’, Management of Wurundjeri Properties & Significant Places (Web page) <https://www.wurundjeri.com.au/services/natural-resource-management/management-of-wurundjeri-properties-significant-places/>.

[7] Oliver Lees, ‘Rare link to Indigenous history’, Star Weekly, Sunbury and Macedon Ranges (Web page) <https://sunburymacedonranges.starweekly.com.au/news/rare-link-to-indigenous-history/>.

[8] Oliver Lees, ‘Rare link to Indigenous history’, Star Weekly, Sunbury and Macedon Ranges (Web page) <https://sunburymacedonranges.starweekly.com.au/news/rare-link-to-indigenous-history/>.

[9] Google Maps 2021, available through: https://goo.gl/maps/RyMi6muurgV7YNBg6 [accessed July 2021].

[10] ‘Wurundjerie Earth Rings’, Historical RagBag, May 21 2018 (web) https://historicalragbag.com/2018/05/21/wurundjeri-rings/>.

[11] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80.

[12] Hume Planning Scheme (cl 43.04-3 schd 7 cl 2.0).

[13] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80 [21].

[14]This Act was repealed on 28 May 2007 by s 195 of the Aboriginal Heritage Act 2006.

[15] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80 [27].

[16] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80 [27].

[17] Canterbury Hills Pty Ltd v Hume City Council [2015] VCAT 80 [29].

[18] ‘Toomuc Creek – Pakenham Walk’, Upper Beaconsfield Community Centre [accessed 6 July 2021] https://www.ubcc.org.au/post/toomuc-creek-walk.

[19] KeynoteworthyAU, ‘The significance of Welcome To Country: why every event should have one’ [accessed 6 July 2021] <https://keynoteworthy.com.au/the-significance-of-welcome-to-country-why-every-event-should-have-one/>.

[20] ‘In Them We Trust’, Aunty Joy Murphy Wandin interviewed by Tabitha Leane, September 2020 < chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://koorieheritagetrust.com.au/wp-content/uploads/2020/09/26.-Essay-Aunty-Joy-Murphy.pdf>.  

EPA MUST ACT ON CLIMATE CHANGE – TEST CASE ALERT

The Environment Protection Authority (EPA) must address climate change! 

Who would have thought a Court judgment was needed to settle that?

Black Summer Bushfires. Image: Jamie Kidston.

This morning, in an interview on Radio National with Fran Kelly, the NSW Minister for Energy and Environment stated that the NSW EPA would not appeal the landmark judgement delivered two weeks ago, on 26 August 2021, by Chief Judge Brian Preston of the NSW Land and Environment Court (LEC).

In New South Wales, the EPA has a statutory duty to:

develop environmental quality objectives, guidelines and policies to ensure environment protection’.[1] 

A bushfire survivors group[2] claimed that this statute included a duty:

to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change.

The group was called Bushfire Survivors for Climate Action (BSCA). 

The Chief Judge agreed with them.

In this case, there was an important preliminary finding by another LEC Judge, before the case reached the Chief Judge. Justice Moore found that expert evidence of anthropogenic climate change could be presented. According to the NSW Environmental Defenders Office (EDO), which conducted the litigation for BSCA, this is:

the first time an Australian court has ruled on whether evidence on climate change can be allowed to be heard in a case involving an alleged failure by a Government agency to perform a statutory duty.[3]

Courts previously accepted expert evidence of climate change, but this case accepted that expert evidence was relevant to a breach of statutory duty claim.

As a result, former Australian Chief Scientist, Professor Penny Sackett PhD, gave expert evidence, including her opinion that climate change is:

the greatest threat to the environment and people of New South Wales’.[4]

From this evidence, BSCA argued that protecting the environment required limiting the global average temperature rise to no more than 1.5 degrees celsius above pre-industrial levels to avoid ‘abrupt or irreversible changes in the Earth’s subsystems’ and this required the EPA to regulate sources of direct and indirect greenhouse gas emissions.[5]

EPA argued that there was no compulsion on it as:

[w]hatever objectives, policies and guidelines the EPA might choose to develop is a matter within the EPA’s discretion.’[6]

Chief Judge Preston rejected the EPA’s discretionary approach to its statutory duties, insofar as they concerned climate change.  He found that the ‘general and ambulatory language’ of the statutory duty imposed by s 9(1)(a), Protection of the Environment Administration Act 1991 (NSW) should be construed as “always speaking”,[7] and found that:

The threats to the environment, against which environmental quality objectives, guidelines and policies need to be developed to protect the environment, will change over time and place and in magnitude and impact. The environmental quality objectives, guidelines and policies to ensure environment protection will need to change in response to the threats to the environment that prevail and are pressing at the time.[8]

His Honour examined seven documents relied upon by EPA as evidence of compliance with its statutory duty:[9]

  • Changing Behaviour Together, NSW Waste Less, Recycle More Education Strategy 2016-21;
  • Environmental Guidelines Solid Waste Landfills (2nd ed, 2018);
  • NSW Energy from Waste Policy Statement;
  • Methane fact sheet;
  • EPA Regulatory Strategy 2021-24;
  • NSW Climate Change Policy Framework for NSW, prepared by the Office of Environment and Heritage; and
  • Net Zero Plan Stage 1: 2020-2030, prepared by the Department of Planning, Industry and Environment.

The Chief Judge found that none of these documents was sufficient to meet the EPA’s statutory duty in regard to climate change.

This landmark case followed the important decision of Justice Bromberg in the Federal Court in May 2021 finding that the Federal Environment Minister, Sussan Ley, had a duty of care to young people to consider climate change impacts while administering the legislation for which she is responsible.[10] Ms Ley chose to appeal Justice Bromberg’s decision.

VICTORIA

A statutory duty is imposed on the Victorian EPA by the Victorian Environment Protection Act 2017 (Vic), requiring it to identify and respond to opportunities to:

  • eliminate or reduce risks of harm to human health and the environment, and
  • improve environmental quality.[11]

The Victorian EPA appears to have no specific climate change policy or guidelines, but some of its existing policies potentially encompass climate change considerations.

That said, the Victorian Climate Change Act 2017 empowers the Victorian government to take action on climate in many different ways, including by:

  • a goal of net zero greenhouse gas emissions for Victoria by 2050;[12]
  • interim goals of net emissions reduction at 5 year intervals until 2050;[13]
  • emissions reductions pledges for various sectors and organisations;[14]
  • a requirement for various decision makers to have regard to the impacts of climate change;[15]
  • a Ministerial climate change strategy;[16] and
  • a strategy to adapt to the effects of climate change.[17]

CONCLUSION

The current era of emissions reduction policy in Australia retains a focus on developing market-based drivers with funding support for ‘least cost’ CO2 emissions reduction projects, despite previous support for a nationwide and cross-border emissions permit trading scheme.

By comparison, the German approach, codified in the 2019 Federal Climate Change Act (Bundes-Klimaschutzgesetz), establishes legally binding climate targets, and designates responsibility for verifiable and proportionately distributed sectoral emissions targets to the regulatory agency with responsibility for developing policies for that sector.

The precedent established by Chief Judge Preston’s decision may signal the need, in the face of the threats posed by climate change, for whole of government approaches that redefine the ambit of the duty of statutory agencies to development and implement emissions reduction policy that satisfactorily responds to the scientific reality of climate change.

For a PDF copy of this article click here.

KELLEHERS AUSTRALIA

10 September 2021

Copyright © Kellehers Australia 2021.

Liability limited by a Scheme approved under Professional Standards Legislation.

This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.


[1] Protection of the Environment Authority Act 1997 (NSW), s9(1)(a).

[2] Image https://www.eremos.org.au/index.cfm?module=news&pagemode=indiv&page_id=1189894, accessed 10092021.

[3] Environmental Defenders Office, ‘Court Rules Bushfire Survivors Can Present Climate Evidence in Case Against NSW EPA’ (5 November 2020) <https://www.edo.org.au/2020/11/05/court-rules-bushfire-survivors-can-present-climate-evidence-in-case-against-nsw-epa/>

[4] Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92 (Bushfire Survivors) at [60].

[5] Bushfire Survivors at [90].

[6] Ibid, at [63].

[7] Ibid, at [66].

[8] Ibid.

[9] Ibid, at [104].

[10] Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 130 and 133; Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560.

[11] Environment Protection Act 2017 (Vic), s 358(d).

[12] Climate Change Act 2017 (Vic), s6(1).

[13] Ibid, s10(1).

[14] Ibid, ss41-50.

[15] Ibid, s17.

[16] Ibid, ss29-33.

[17] Ibid, ss34-40.